Optivo (202113230)

REPORT

COMPLAINT 202113230

Optivo

11 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

The complaint is about:
1. The landlord’s response to the resident’s report of a roof leak.
2. The landlord’s complaint handling.

Background and summary of events

The residents occupied, together with their daughter, a ground floor flat under a lease. The lease was dated 19 December 1983 and was assigned to the residents on 20 September 2019. The property had previously belonged to one of the resident’s mother. In this report, the residents will be referred to as “the resident”.

Legal and policy framework

The lease provided as follows:
1. The flat included the floors, joists, ceilings, internal walls including the plaster of the external walls.
2. The resident was required to request written consent to carry out any alterations.
3. The landlord was responsible for the maintenance and repair of the structure of the property, including the roof.
4. The resident was obliged to pay a contribution to the costs of the maintenance and repair.
Under the landlord’s compensation policy, the landlord would pay a decorating allowance for decorations damaged by repairs.
Under the landlord’s complaints policy, the landlord would respond to a complaint within ten working days. The resident was entitled to request a review of the complaint before a panel within 10 working days of the first stage response. A panel review would take place within a further 30 days, following which the landlord should provide its response within a further 10 working days.
The complaint response should:
1. Acknowledge where things had gone wrong and apologise for any failings.
2. Provide an explanation, assistance or reasons.
3. Take action if there had been a delay.

Chronology

On 7 December 2020, the resident reported that the ceiling in his utility room had collapsed due to rainwater penetration through its flat roof, causing damage. According to the landlord, the utility room was an outhouse joined internally to his property in the original construction.
The dates are not clear from the records, as the repair records refers to the date of the report and not the works, however on or by 5 January 2021, the landlord had inspected the property, identified possible causes of the collapse, and raised works to repair the roof.
According to the landlord’s internal emails and records, the resident chased the landlord and the landlord chased its roofing contractors on various dates for he works to be carried out. On 15 January 2021, the landlord wrote to the resident that the roof repairs were prioritised as urgent but there was a delay due to the pandemic and the resulting backlog and shortage of supplies.
The landlord wrote to the resident on 3 February 2021 that the landlord was responsible for external repairs and had raised an order with its contractors to repair the roof. However, the plaster inside the flat was the responsibility of the resident, therefore it referred the resident to the resident’s insurers to make an insurance claim for the ceiling repair.
Works were carried out on an unspecified date in March 2021. The landlord did not provide this service with details of what works were carried out. As at 21 April 2021, the landlord was to carry out a post inspection, and the resident was awaiting confirmation that the works would be completed so that remedial internal works, under the insurance claim, could go ahead.
On 26 April 2021, the resident made a complaint that he was awaiting further repairs and had been chasing the landlord but it was not returning his calls. His daughter suffered from asthma and he was concerned that the utility ceiling was “black with mould”.
According to the landlord’s notes, a property inspection took place on 29 April 2021.
On 27 May 2021, the landlord sent the resident its report of the inspection on 29 April 2021, together with correspondence between the landlord and contractor. The report stated as follows:
1. It cited possible causes, including water penetration at the railing upstands, a crack at a junction of the flat roof to a concrete walkway slab above, and a non-continuous roof covering.
2. While the condition of the brickwork “did not assist”, it was an unlikely cause.
3. It noted that the utility room was a not-habitable unheated area which could suffer with some condensation issues, however the water ingress needed to be resolved.
4. It recommended a further investigation to be carried out by a flat roof specialist to discuss a continuous covering over the entire perimeter of the flat roof constructions.
The landlord wrote on 4 June 2021 with its first stage response as follows:
1. It set out the steps it had taken in relation to the repairs to date
2. It cited the surveyor’s report dated 27 May 2021.
3. The landlord was to arrange for a further investigation to be carried out by a flat roof specialist.
4. It would ensure decoration works were completed to the utility room following the necessary repairs.
5. It apologised that the resident had not received its “usual level of service” and appreciated the resident’s frustration with the lack of communication and the delays due to backlogs in carrying out the repair.
On 9 June 2021, the landlord wrote to the resident with a specification of works including:
1. Installation of a three-layer felt system to both roofs and walkways and lapping onto newly-felted flat roofs towards the rear of the properties.
2. Works to the rail posts and installation of lead flashings.
3. Fit tiles to protect the felt from foot traffic, repoint and make good holes, and install a stronger protective sealant in relevant locations.
On 8 June 2021, the landlord considered whether there should be any additional charge for leaseholders.
According to the landlord’s review panel notes of 3 August 2021, the parties disputed whether the room was an outhouse or a utility room, and therefore part of the house. The resident had reported that the room had had no door between the utility room and the kitchen and had been “part of kitchen for years”.
On 13 June 2021, the resident requested a review of his complaint on the basis that the works were taking too long, the landlord’s lack of communication and that the complaint procedure had not been adhered to. He wanted improved communication and the roof repair to be completed to a satisfactory standard.
There followed an internal discussion regarding the landlord’s responsibilities and which party should bear the costs. It took the view that it was responsible for the external fabrication of the building and had failed to repair it in a timely manner.
On 4 July 2021, the landlord considered that the block did not need repointing, as the brickwork was in good condition,
The landlord wrote to the resident with a list of the works on 16 July 2021 including as follows:
1. Removal of promenade tiles in front of the property.
2. Installation of a 3-layer felt system to both tabletop roofs and walk ways and lapping onto newly-felted flat roofs towards the rear of the properties.
3. Vertical handrail posts to be dressed individually to a specific specification.
4. Specified lead flashings and protective tiles to be installed.
5. Repointing of and sealing walls under both roofs and porous areas.
6. The works were scheduled to start on 22 July 2021.
According to an internal email of 22 July 2021, the resident had expressed concern about reported comments by a roofer that they may not carry out the works in accordance with the schedule.
According to an internal email of 22 July 2021, the newly-existing felts to the rear were to remain and lapped onto but the felt on the front two “tabletops” would need to be removed and the new system installed.
According to an exchange of emails between the specialist contractor and the landlord on 26 July 2021, the resident contacted the landlord querying the works. He had understood that a3-layer felt system would be newly fitted at the rear of the property. The landlord considered that as far as it was aware, the correct layers of felt were already in place. While an additional layer could have been added, the contractor confirmed that that the rear roofs did not need to be “done”. It did not believe there were only two layers as the resident thought. It would carry out a water test with dye on completion to prove the worthiness of the roof. The landlord considered that the May report caused some confusion as it did not mention the front roof.
On 28 July 2021, the landlord informed the resident that the contractor would continue to complete the works as agreed and a water test would be carried out on completion. Should any further works be required, they would ensure they were completed as a priority. It promised to ensure all required works were completed.
The resident replied on the same day asking when the guttering and internal works would be completed.
On 2 August 2021, according to an internal email, the resident believed that apart from some chippings and the water test, the works had been completed. The landlord was to then carry out redecoration works.
On 16 August 2021, the resident sent to the landlord photographs of areas where he reported no work had been carried out.
The landlord informed the resident on 16 August 2021 that the roofing works and the repointing/brickwork had been completed. The installation of the tiles to the walkway, due to supply issues, and the decorating works was outstanding. The water test was “okay”. It would be inspecting the works.
According to an internal landlord’s email of the same date, the resident disputed that the pointing had been completed and the water test comprised of “a couple buckets of water being thrown over the roof”. However, there has been no more drips but he was still running a dehumidifier in the utility room. He requested further details of the works that had been carried out.
A panel review of the complaint took place on 18 August 2021.
On 24 August 2021, the resident reported that there was still a hole through the wall as evidenced by a chopstick he had placed through the wall. The builders had left the workplace in a “disgusting state” including leaving bags of rubbish.
The landlord arranged a post-inspection on 26 August 2021.
According to the landlord’s internal email of 31 August 2021, two water tests had been carried out at the property when the resident was not present
The landlord wrote with its second stage response on 1 September 2021 as follows:
1. It recognised its poor communication. It acknowledged he was promised call backs when staff were unavailable to do so, which understandably caused annoyance. It set out how it would improve its systems including setting realistic call back timeframes and checking staff calendars and availability.
2. It offered £50 compensation for its poor communication and apologised.
3. It acknowledged that the resident was provided with contradictory information.
4. It would write further in response to the resident’s queries by 8 September 2021.
5. It set out the next steps, including that the specialist contractor would assess the completeness and quality of the works.
6. The landlord would assess the internal condition of the utility room and determine what work might be necessary.
7. It would undertake the internal repairs itself or make a discretionary financial offer.
8. It will not be compensating the resident in relation to the repairs but the resident would not be “chased” for financial recharge for the cost of the repairs. It would confirm this separately.
The landlord confirmed on 1 September 2021 that a 10-year guarantee was provided for the works.
The landlord wrote to the resident on 8 September 2021 that it had sent him the water test video. The contractor had completed two water tests. If the roof covering had proved to be watertight and the resident had had no further water ingress, there would be little purpose in undertaking a further test with dye at that stage. If a commitment had been made to use dye, it apologised it had not been actioned. The resident was to report any further water ingress. The contractor visited the site on 1 September 2021 and reported he did not see any scuffing of the surfaces on the walkway. However, it recognised the tiles, which it was still awaiting, needed laying as soon as possible and reported that the contractor was investigating alternatives. It provided further explained, with photographs as follows:
1. The marks the resident had reported were not cuts made by a grinder. The grinding attachment would have been a rasp or a toothed blade. The grinding tools used were small and easily handled, so they did jump and cause damage. There was no damage to the brick edge.
2. In relation to the chopstick in the brickwork, it explained that the silicone was added on the very first day of the job as a temporary measure and why the operatives were not able to complete the small section. It would be done when the tiles were laid.
3. Holes were made by the removal/reinstatement of a flue and were not associated with the works.
4. The contractor had confirmed that the timber that may have been the “rubbish” the resident had referred to was not theirs. The site was otherwise clear.
5. It had offered £50 compensation, specifically in recognition of the poor communication and impact.
A further inspection took place on 15 September 2021. On 20 September 2021, the landlord considered that the works were deemed to have an acceptable standard of finish, although there were some areas that could have been better. It would arrange a joint site visit to conclude the remaining work and to correct the highlighted quality issues. It had carried out an assessment of the internal utility area and both required further work in order to bring it to an acceptable standard.
The landlord would arrange an additional post inspection, if required.
On 24 September 2021, the landlord considered overlaying with felt would not be acceptable as it could cause pooling/sitting of water above the roof areas. The water will have nowhere to go/drain off. It would defeat the object of the works that had been carried out.
On 2 October 2021, the resident reported a fresh leak. A site visit was arranged to snag the external works, resolve any further queries of the resident and to determine what works were required.
The landlord wrote to the resident on 11 October 2021 that it would carry out additional repointing works the following day and review progress.
The landlord wrote on 12 October 2021 that it was aware the new leak required attention. It was awaiting confirmation of a proposed date to continue with snagging and additional repointing. On 15 October 2021, the resident chased the works to the tiles and the flashing. He also queried that his service charge contribution had been increased and asked whether this was connected to the roof repairs.
The resident informed this service in October 2021 that the landlord’s insurers had funded the repair of the damage inside the property.
The resident continued to chase the works. According to an internal email of 28 October 2021, the external works were imminent but had still not been completed.
On 10 December 2021, the contractor wrote to the landlord that they had carried out a water test. It was “ok” but when he sprayed water onto the boiler flue and the overflow pipe, water started to penetrate into the property. They had installed silicone into the over flow pipe collar as a temporary measure but recommended that the pipe be secured with sand and cement and to install a different collar, rectify the boiler flue, and check the installation of the lead upstand flashing, the newly-pointed brickwork should be painted with waterproofing.
On 20 December 2021, the resident wrote stating he was still awaiting the repairs.
The Ombudsman does not have any further evidence from December 2021.
On 12 December 2022, the resident informed this service that the leak was still not resolved. He disputed that the leak in December 2021 was due to the boiler installation. He had provided the landlord with an estimate of £2,700 for the redecoration works including a replacement ceiling, replastering, and painting. The resident accepted £1,500 in order to progress the works. In November 2022, he was about to undertake the works when there was a fresh leak. He did not have a point of contact with the landlord but with the contractor. He had not received any updates. The contractor was reinvestigating the felt system.

Assessment and findings

The landlord’s response to the resident’s report of a roof leak.

The landlord acted reasonably in inspecting the property and raising works following the leak reported on 7 December 2021. The landlord appropriately did not dispute that it was responsible for the repair of the roof.
The works were delayed to March 2021. The landlord explained that the delay was due to the effects of the then Covid pandemic. The explanation is reasonable. The pandemic affected the building works across the housing sector due to a build-up of backlogs and a shortage of materials.
The Ombudsman notes that the landlord accepted there were delays to the works and acknowledged poor communication.
The landlord’s actions, in particular in September and October 2021 demonstrated attentiveness to the issues and an intention to bring the works to a full completion. However, while the evidence showed that the landlord was otherwise attentive, there were significant delays. It was not reasonable that the landlord did not investigate the underlying cause of the leak sooner than May 2021. The further repairs did not take place until July 2021 and, while this was at least partially explained by the lack of supplies, were not completed till October/November 2021, requiring the resident to chase the landlord. There was no evidence that fault could be attributed to the landlord in relation to the further delays, though its communication could have been clearer and proactive.
The resident was understandably frustrated by the delays to the repairs, the need to chase, added to which he had concerns about his daughter’s health.
The costs of the remedial works were covered by the landlord’s insurance and partly by a contribution by the landlord. The resident reported a shortfall in his costs, as he preferred to arrange the works himself. While the landlord has not had the opportunity to address this aspect of the complaint, this aspect is sufficiently connected to it and it would be disproportionate for the resident to have to make a fresh complaint. The Ombudsman has therefore considered the matter. They bear in mind that it would have been cheaper for the landlord to have effected the repairs itself or through its contractors rather than an external party, in which case a contribution was reasonable. The landlord had suggested a discretionary offer. However, the landlord should have been clearer from the outset about whether it intended to meet the resident’s estimate or pay a contribution.
The position regarding the costs may be different if there was a finding of negligence. However, the Ombudsman does not make findings of legal negligence and the resident would have to seek legal advice in that regard.
The central issue concerning the dispute whether outhouse/utility was a habitable room was whether the landlord was responsible for the mould in the outhouse/utility room. The Ombudsman considers that building regulations, for example, would deem this to be a habitable room. Either way, given this is a leasehold property, and the terms of its lease, the landlord did not have repairing obligations regarding the internal spaces of the property. However, the mould could have been caused by the water ingress in which case the landlord may be responsible if had been negligent in law regarding the condition of the roof. However, again, this is an issue of legal negligence which is better determined by a court.
The Ombudsman has noted that the landlord would not “chase” the resident for his service charge contributions of the costs of the repairs. The landlord has not provided the further letter of confirmation, however it is understood that the resident would not be liable for the costs through his service charges. The service charge accounts will provide details whether the costs were included in the service charges. Again, this was not part of the resident’s complaint. However, the Ombudsman would expect the landlord to adhere to its assurances that it would not pass on the costs of the repairs. In the circumstances, the Ombudsman considers that the landlord acted reasonably.
The landlord acted reasonably in investigating the rubbish that was left and the resident’s queries. The landlord’s explanations provided on 8 September 2021 were reasonable. It reasonably and appropriately pursued the snagging and post-inspections as necessary. Though the evidence showed a dye test was promised, the landlord was entitled to rely on the water tests.
The evidence showed that remedial repairs were largely covered by the landlord, the costs of the repairs were not to be passed onto the resident, and while there were delays and poor communication, not all the delays are attributable to the landlord. In addition, overall, it appropriately addressed the repairs. However, in the view of the Ombudsman, the offer of £50 in compensation was insufficient to recognise the frustration, distress, and length of the delays and the resulting impact on the resident, his household, and his home.
In relation to the felting, on the basis of the evidence, it was reasonable of the landlord to rely on the opinion of its specialist contractor and consider that the rear roof had the required three-layer felting. Given the contractor expressed some certainty that the rear roof did not require a refit, the landlord should have provided a more detailed explanation of why it reached that conclusion. It is indicated that the contractor may reinspect the felting on the rear roof. If the original assessment was incorrect, it is open to the resident to make a fresh complaint.
While the further leaks post-dated the conclusion of the landlord’s complaint procedure, they are sufficiently connected to the complaint. The Ombudsman is unable to assess whether the further leaks were due to poor repairs or to new events. However, while the landlord was entitled to rely on the water tests, and the Ombudsman bears in mind the inherent difficulties presented by a flat roof, the Ombudsman would expect the landlord to have ensured any further leaks were attended to proactively and to ensure the resident had a point of contact with the landlord and is updated.

Complaint handling

There were unexplained delays in the landlord’s responses to the resident’s complaint from 23 April 2021 to 4 June 2021 and from 13 June 2021 to 18 August 2021 when the panel review meeting took place. The first stage complaint response did not provide a resolution to the resident’s central points of delay and poor communication, such as providing a point of contact and how it would manage the further repairs. The response did not show empathy and appear to recognise that this was the resident’s home. It did, however, accept responsibility and offered to carry out redecoration of the utility room.
There were benefits to the complaint handling as it provided a point of contact during the repairs and secured the attention of higher management. The landlord addressed the resident’s queries. It unreservedly acknowledged its failings, apologised and set out next steps. It also showed how it learnt from the complaint and how it would improve its communication procedures.
However, the Ombudsman would have expected the landlord to have seen the repairs through to resolution, regardless of the causes of the further leaks, including after the conclusion of the complaints process.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s report of a roof leak.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Reasons

While the landlord responded promptly to the resident’s report of a roof leak, and demonstrated a thorough approach, there were delays and poor level of communication. The Ombudsman does not consider that the compensation was adequate given the frustration and impact on the resident. However, the landlord reasonably mitigated the financial impact on the resident.
There was some unexplained delays in the complaint handling and while it was largely constructive, the landlord should have continued to monitor the situation.

Orders

The landlord is ordered to pay the resident compensation in the amount of £350 in addition to the £50 the landlord has offered, within 4 weeks of this report, as follows:
1. £200 in recognition of the distress and inconvenience caused to the resident by its delays and lack of communication.
2. £150 in relation to the landlord’s complaint handling.
The landlord’s surveyor should inspect the roof with the flat roof specialist within 3 weeks and provide a report 2 weeks thereafter with a copy to the resident and to the Ombudsman, with a diagnosis and proposals for rectification.
The landlord should, within 3 weeks of this report, provide to the resident a point of contact to update the resident on a regular basis.
The landlord should provide a copy of its letter of confirmation to the Ombudsman within 3 weeks that it was not passing on the costs of the repair through the service charges in accordance with its letter of1 September 2021.
The landlord should provide confirmation of compliance with the above orders within 5 weeks.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should ensure that it provides an explanation for its decisions regarding the repairs and clarifies the works it will carry out.
2. The landlord should clarify the status and landlord’s responsibilities in relation to the outhouse/utility room.
3. The landlord should clarify what works that it carried out in March 2021.
4. The landlord should improve its systems and procedures for communication as set out in its review response of 1 September 2021 if it has not done so already.
5. The landlord should notify the Ombudsman of its intentions regarding these recommendations within 4 weeks of this report.