Anchor Hanover Group (202124720)

REPORT

COMPLAINT 202124720

Anchor Hanover Group

31 August 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 concerns the landlord’s:
   1. handling of and response to the resident’s reports about damp.
   2. communication and complaint handling.

Background

2. The resident is a leaseholder of the landlord, which is a housing association. The property is a house. Since 2018, the resident has had an ongoing dispute with the landlord relating to damp patches in the property and whether the responsibility for resolving the issue lies with the resident as the leaseholder, or with the landlord as the freeholder.
3. In March 2021, the resident contacted the landlord to advise that damp patches had reappeared. The landlord wrote to the resident on 24 May 2021 and explained that its surveyor was of the opinion that the issue was not rising damp and was more likely to be caused by a leak from the stack pipe. The landlord suggested that work done to the bathroom by the resident could be the reason why the pipe was damaged. The landlord also explained that issues with internal pipework (including the stack pipe) were the responsibility of the resident to resolve, while issues with the underground pipework were the responsibility of the landlord.
4. The resident wrote to the landlord on 18 June 2021 and raised a complaint. She described the elements of the complaint as the length of time the matter had been outstanding and the poor level of service she had received from the landlord during this period. The resident also stated her dissatisfaction with the lack of support offered by the landlord in helping her to arrange her own damp-proofing survey by an independent contractor.
5. The landlord sent a stage one complaint response to the resident on 24 June 2021. The landlord informed her that it stood by the opinion of its surveyors who had inspected the property and concluded that the repairs were the responsibility of the resident. It also stated that if the resident arranged for a pressure and air test of the pipework and the results contradicted its position, it would investigate the matter further.
6. The resident arranged for an inspection to be undertaken on 29 June 2021 and provided a copy of the report to the landlord. The report concluded that “as we could find no physical evidence of an escape of water from any of the pipework above ground, we suspect there might be a small crack in the clay pipe under the concrete. This will need to be confirmed by a drainage engineer”.
7. The resident passed on correspondence from her plumber to the landlord on 26 July 2021. The plumber had informed the resident that “[A pressure and air test] hasn’t been done as on further investigation a fracture to the pipework has been discovered. The position of the fracture is approximately, but not limited to 50mm below the surface and the [extent of] the damage to the pipe can be assessed with CCTV inspection which can be booked on later date (if required)”.
8. The landlord arranged an appointment for 20 August 2021 for its contractor to attend the property and investigate the pipe. The contractor informed the landlord that the issue was a crack in the collar that attaches the stack pipe to the underground pipe. The landlord provided this information to the resident on 25 August 2021 and explained that as the collar was inside the property, it would be her responsibility to arrange repairs.
9. Following an escalation request by the resident, a stage two complaint response was sent on 14 September 2021. The landlord stated that the reports from the resident’s contractor and plumber supported its position that the leak came from the stack pipe. The landlord further explained that, under the terms of the resident’s leasehold agreement, as the cracked sleave joint was above ground, it was the resident’s responsibility to repair. It also apologised for any confusion caused by staff members misstating the lease details.
10. On 11 October 2021, the resident wrote to the independent customer complaint panel (ICCP) and requested that it consider her complaint. The ICCP sent its response to the resident and the landlord on 25 November 2021. It concluded that:
    1. The length of time taken to resolve the issue was unreasonable and that the landlord should have arranged to repair the pipe in 2018 when the issue was first raised, and then recharged the resident if it determined the repair was the resident’s responsibility.
    2. The landlord had not properly apologised to the resident in its complaint process, nor had it highlighted the specific section of the lease which stated that the repair was the resident’s responsibility.
    3. In light of the length of time the matter had been outstanding, and the time and trouble caused to the resident, the landlord should pay compensation. The ICCP recommended that the landlord pay the resident £700 personal compensation, an additional £700 for its service failure, and to cover the resident’s costs to repair the pipe upon receipt of the relevant invoices.
11. The landlord sent the resident a response to the ICCP’s recommendations on 19 January 2022. It informed the resident that:
    1. It would only consider undertaking repairs to a property that were not its responsibility in cases of a threat to life or destruction of property. Therefore, it was not appropriate for it to undertake the work that was the responsibility of the resident in this case.
    2. It acknowledged the length of time it had taken to resolve the issue and accepted that it could have been more apologetic and clearer in its communication. It apologised to the resident for the length of time the resident had been dealing with the problem and incidents of poor service she had received during this period.
    3. It explained that one of its contractors who had visited the property in 2018 was unaware that the repair was not the landlord’s responsibility and had given incorrect advice to the resident. It also explained that its location manager would normally be on site and would have been able to correct the contractor, but they were not available. The landlord apologised for this incorrect information being given to the resident and for the confusion it had caused.
    4. It provided the relevant section of the leasehold agreement relating to leaseholder repair responsibilities and noted that the resident had been advised of these responsibilities when she first raised the matter in 2018.
    5. It disputed the level of compensation the ICCP recommended and that it should cover the expenses of the work arranged by the resident. It stated that it had given the resident a diagnosis of the problem in 2018 and advised her to contract a plumber. The landlord therefore did not think it was reasonable for it to pay compensation from 2018 or the resident’s expenses. It also noted that in 2018 it had informed the resident that she could make a claim against its liability insurer for the costs of the work, but before the claim could be progressed, the resident would first have to arrange to complete repairs to the leak.
    6. It accepted the ICCP’s point that it had not provided all the information it should have in its complaint responses. It offered the resident £200 compensation, which it broke down as £100 for the omitted information and £100 for the time and effort the resident had put into pursuing the matter.
12. In referring the complaint to this Service, the resident described the outstanding issues of the complaint were that she disputed that the source of the leak came from the stack pipe or collar and maintained that the source was from the underground pipe. As a resolution to the complaint, the resident requested that the landlord cover her costs for inspecting and repairing the pipework.

Assessment and findings

Relevant policies and procedures

13. Clause 3.1 of the leasehold agreement states that the resident, as leaseholder of the property, is obligated to “keep the interior of the demised premises …. clean and in good and substantial repair order”.
14. The first schedule of the leasehold agreement describes the demised premises. This, in part, states that the premises includes “the cistern tanks sewers drains pipes wires ducts and conduits which are lain in any part of the Building and used solely for the purpose of the premises hereby demised”. The sixth schedule of the leasehold agreement sets out the landlord’s repair responsibilities. This states, in part, that the landlord is responsible for the upkeep of “the main structure of the Building …. and all other parts of the estate not demised or intended to be demised. The water pipes sewers drains and electricity cables and wires serving the Building and enjoyed or used by the lessee in common with the lessee of the adjoining or neighbouring Properties”.

Scope of investigation

15. The resident has disputed the landlord’s interpretation of the leasehold agreement and its position that the collar linking the stack pipe to the underground clay pipe is part of the stack pipe, making it part of the demised property and therefore the responsibility of the resident as leaseholder to repair.
16. Whilst the Ombudsman has regard to the terms of the occupancy agreement in assessing what was reasonable in all the circumstances of the case, it is not within this Service’s authority to make legally binding decisions. Instead, an application would need to be made to the court for a definitive ruling on which party is responsible for which installations and repairs.
17. In accordance with paragraph 39(i) of the Scheme, this Service will not consider 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. As a result, the Ombudsman will not make a finding on the correct legal interpretation of the lease regarding whether the landlord is legally responsible for repairing the pipework. If the resident wishes to pursue this aspect of the complaint, it is advised that she take legal advice.
18. In her correspondence with the landlord and this Service, the resident has stated that she first informed the landlord of issues with damp patches in the property in October 2018 and that the landlord had initially agreed to undertake the work. The work was then cancelled and she was informed by the landlord that it was her responsibility to resolve. The resident reported the issue again in March 2021 when the damp patches reappeared.
19. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
20. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to March 2021. This is in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, which states that we will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in June 2021.

Landlord’s handling of damp

21. The ICCP recommended that the total compensation award from the landlord should be £1,400. However, it should be noted that this figure was calculated from when the resident first raised the issue with the landlord in October 2018, up to when she contacted the ICCP in October 2021. As explained above, this report will only consider the landlord’s actions from March 2021 onwards. Therefore, the compensation award has only been considered from this date. It should also be noted that the ICCP can make recommendations to the landlord which are over and above the resolution offered within the complaints process, but the landlord is not under any obligation to accept these recommendations.
22. The ICCP also recommended that the landlord cover the resident’s costs for identifying and then repairing the pipework. This was declined by the landlord as it disputes that it has any responsibility for the repair work. As stated in the scope of investigation, it is not within the remit of this Service to give a legal opinion on the clauses in an occupancy agreement and whether the landlord’s description of which sections of pipework should be considered internal and which should be considered external. However, we can consider the information the landlord provided to the resident relating to this aspect of the complaint and whether it was reasonable in the circumstances.
23. The landlord informed the resident in its letter sent on 24 May 2021 that it had received three opinions from three different surveyors, all of whom had stated that the issue was not rising damp and the damp patches were likely to be as a result of a leak of the stack pipe. A landlord would be entitled to rely on the conclusions of its appropriately qualified staff and contractors who had inspected the property and base its decision on whether or not it was responsible for completing repairs on this information. Therefore, it was reasonable for the landlord to make a decision on its repair responsibilities from the information it received from the surveyors.
24. After being provided with an investigation report and emails from a plumber from the resident which stated that the cause of the leak was an underground pipe, the landlord then arranged a further inspection by its own contractors. This was appropriate action for the landlord to take to ensure that the inspections previously undertaken were correct or to determine if additional cracks had been discovered in a location that would be its responsibility to repair. This further inspection supported the landlord’s position.
25. In its stage two response the landlord also provided information to the resident on how to contact agencies that could provide her with support, advice and information on how to progress a legal dispute relating to the occupancy agreement if she continued to dispute its position.
26. Therefore, there is no evidence of service failure in the information provided by the landlord for this aspect of the complaint. The landlord has fully explained why it reached its decision on repair responsibilities and how the resident could progress the matter further if she disputed its decision. While it is acknowledged that there was a delay in the landlord providing a full explanation to the resident during the complaint process, this was considered in its apology and compensation offer described above.
27. In declining the ICCP’s recommendation to refund the resident’s repair costs, the landlord also explained that it had informed the resident in 2018 that once the work had been completed, she could make a claim against its liability insurer for the costs of the repair. The resident has stated that all work was completed by December 2021. However, it is not clear from the evidence provided that an insurance claim has been progressed or the landlord has provided the resident with the information on how to progress a claim. Therefore, it is recommended that if it has not done so already, the landlord should contact the resident and provide the necessary information to progress a claim.
28. During correspondence with this Service, the resident has stated that she was informed by the contractor who completed the repairs that the leak came from a crack in the underground pipe and not from the stack pipe. It is not clear that the resident has passed on this evidence from her contactor to the landlord.
29. This information was provided to the resident after the completion of the formal complaint process. Before this issue can be considered by this Service, the landlord needs to be provided with the opportunity to investigate and respond. The resident will need to contact the landlord and, if appropriate, raise a separate complaint regarding this matter. This is in line with paragraph 39(a) of the Housing Ombudsman Scheme, which states that the Ombudsman can only consider complaints that have exhausted a member’s complaint procedure.

Complaint Handling

30. In its response sent on 19 January 2022, the landlord accepted that it had not provided all the necessary information in its formal complaint responses and acknowledged the inconvenience that this had caused to the resident. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
31. The landlord acted fairly in acknowledging its mistakes and explaining what it did wrong. It put things right by apologising to the resident, providing the information from the leasehold agreement relating to repair responsibilities and awarding compensation. It looked to learn from its mistakes by improving the information it provides to leaseholders for this type of situation. Internal correspondence provided to this Service showed that the landlord discussed how to provide information concerning approved contractors to leaseholders who have to organise repairs or inspections themselves, and also how it provides information from its own contractors to leaseholders. The landlord also gave a more detailed explanation for its actions and its position on the issues raised by the resident,  than it had done in its two formal complaint responses, whilst it could have done so sooner, this was evidence the landlord had taken the resident’s complaint seriously.
32. The compensation offered by the landlord is broadly in line with the Ombudsman’s own remedies guidance (which is available on our website). This recommends a payment of £50 to £250 in cases of service failure resulting in some impact on a complainant. As an example for when this level of redress should be considered, the guidance suggests “failure to meet service standards for actions and responses but where the failure had no significant impact”.
33. In this case, the landlord has accepted that once a formal complaint had been opened it should have provided information about the clauses in the leasehold agreement relating to repair responsibilities and clearer information to the resident concerning the recommendations it received from its contractors who had visited the property. Therefore, a compensation award of £200 was reasonable in the circumstances.

Determination

34. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of how the landlord handled and responded to the resident’s reports of damp.
35. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolved the issues with communication and its complaint handling.

Recommendations

36. It is recommended that the landlord, if it has not done so already:
    1. pay the £200 compensation it offered in its 19 January 2022 response to the resident. The Ombudsman’s determination of reasonable redress was made on the understanding that this compensation would be paid.
    2. provide the necessary information to the resident on how to progress a claim with its liability insurer with respect to her costs in completing repairs to the pipework.