Peabody Trust (202215428)

REPORT

COMPLAINT 202215428

Peabody Trust

24 August 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:
   1. reports of a leak in her building causing damp and mould in her property;
   2. provision of evidence of defects in the resident’s building following a further leak;
   3. associated complaint.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, this service cannot investigate issues concerning the landlord’s response to evidence of defects in the resident’s building following a further leak. This is in accordance with paragraph 42a of the Housing Ombudsman Scheme, which states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, “are made prior to having exhausted a member’s [landlord’s] complaints procedure”.
4. The resident has stated that, following evidence of a further leak in the building, she and other affected leaseholders instructed a leak specialist to investigate the cause(s) of leaks in the building and produce a detailed report. The report was completed in May 2023. Findings in the report suggested that there are defects or features in the resident’s building that do not meet building regulations. The report suggested that the identified defects may have been responsible for enabling leaks to cause significantly more damage to the resident’s flat than they otherwise would have, had the defects not been present. The resident would like the landlord to respond appropriately to the report’s findings and repair the damage caused to her flat by the leaks.
5. This service has not seen sufficient information to conclusively determine whether the most recent leak is directly linked to the original leak that formed the basis for the resident’s complaint to the landlord in January 2022. The leak specialist’s report of May 2023 was also completed seven months after the landlord issued its stage two complaint response. Therefore, in line with the Housing Ombudsman Scheme, it would not be appropriate for this service to investigate this aspect of the resident’s complaint at this stage as the landlord has not had the opportunity to formally respond to these issues. The resident may wish to pursue a formal complaint with the landlord about the findings of the report of May 2023. If a new complaint completes the landlord’s internal complaints procedure and the resident remains dissatisfied with the landlord’s response, she may then be able to refer the complaint to the Ombudsman to investigate.

Background

6. The resident is the shared owner of a flat within a block of flats. The landlord owns the freehold of the block. This report refers to a ‘neighbouring flat’. For clarity, this refers to the flat within the block, on an upper floor, that the landlord considered to contain the source of the leak.
7. On 20 December 2021, the resident reported to the landlord that a leak was affecting her flat. The leak had also been reported by some of the resident’s neighbours, with the first report having been made to the landlord in September 2021. On 4 January 2022, the resident complained to the landlord about its response to the reports. She said the leak was causing black mould to her flat. She stated that she had been told that the leak was coming from the waste pipe behind the neighbouring flat’s wall and that the landlord was therefore obliged to fix it.
8. The landlord issued its stage one complaint response to the resident on 28 January 2022. It said that its contractors had attended the building on multiple occasions and had found the leak to be originating from a neighbouring flat, not communal pipework. It would therefore be the leaseholder of the neighbouring flat’s responsibility to arrange for a plumber to fix it. The landlord advised the resident to address the damage to her flat through her home insurance. It apologised for giving the resident mixed messages about the source of the leak and offered her a contribution of £100 towards any insurance excess she may have to pay.
9. The resident raised concerns with the landlord about its stage one complaint response. The landlord contacted the building’s insurer, who arranged for a plumber to attend the building on 24 February 2022 and complete an investigation into the cause of the leak. The resulting report did not give an opinion on the cause of the leak. The resident asked the landlord to escalate her complaint to stage two of its complaint procedure on 25 February 2022.
10. On 12 March 2021, the resident informed the landlord that mould had spread to her young child’s bedroom. The landlord instructed a leak specialist to attend the resident’s building on 17 May 2022 to investigate the cause of the leak. The resulting report was inconclusive. The landlord arranged for another leak specialist to attend the building on 12 August 2022 to carry out another investigation. Their report also did not determine the cause of the leak.
11. On 16 September 2022, the landlord issued its stage two complaint response to the resident. It said its initial hesitance to carry out extensive investigations into the leak had been reasonable as it had been advised that the leak was not its responsibility to repair. It explained that it had consulted with senior, experienced professionals and its position remained that it was the leaseholder of the neighbouring flat’s responsibility to fix the leak. The landlord accepted that its communication with resident had been poor, that there had been delays with arranging contractor appointments, and delays to its complaint handling. It offered the resident £850 in financial compensation, made up of:
    1. £400 to recognise the resident’s time and trouble;
    2. £200 for the delays the resident had experienced to the landlord’s response;
    3. £150 for delays to the landlord’s complaint handling;
    4. £100 to cover or contribute to any insurance excess the resident may need to pay.
12. In November 2021, the landlord agreed to arrange for a one-off mould wash to be completed in the resident’s flat as a goodwill gesture. This was arranged to take place on 24 January 2023. The contractor did not attend the resident’s home as planned. The resident stated that the landlord did not contact her or offer an apology for the missed appointment.
13. On 15 February 2023, the landlord emailed the resident. It said that no leak had been found when the leak detection company attended the resident’s building in January 2023.  In the meantime, the neighbouring flat’s leaseholder had carried out repairs that the landlord had previously advised them to complete and the leak had stopped. The landlord offered the resident an additional £150 to recognise her time and trouble and an additional £50 for its inadequate communication.
14. The resident asked the Ombudsman to investigate her complaint. She remains dissatisfied with the landlord’s handling of the leak. She stated that the landlord failed to keep to arranged appointments and requested access to her flat without notice. The resident would like this service to review the landlord’s offer of financial compensation.

Assessment and findings

Scope of investigation

15. The issues in this complaint centred around the resident and the landlord reaching different conclusions on whose responsibility it was to repair the ongoing leak that was causing significant damage to the resident’s flat. The landlord’s position in its complaint responses was that it had sufficient reason to believe the leak originated from the neighbouring flat. In that case, it would therefore have been the relevant leaseholder’s responsibility to repair the leak and the resident would need to claim on her insurance to resolve the damage, damp, and mould in her flat. The resident believed that the landlord’s position was incorrect and that it was responsible for fixing the leak and repairing the damp and mouldy conditions that the leak had caused in her flat.
16. The dispute over responsibility is ongoing, though there is evidence that repairs carried out within the neighbouring flat coincided with the original leak stopping. It is not conclusively known whether any subsequent leak was the same leak reoccurring or a different one. There is a continuous flow of new information on this issue and therefore it will not be appropriate for this report to determine whose responsibility it was to fix the original leak, and by extension, the resulting damp and mould in the resident’s property. This service would not expect the landlord to have responded to the resident’s reports of damp and mould in her home if it had determined that the cause of it was not the landlord’s responsibility to resolve. This is because the resident has shared ownership of her flat and the landlord would not usually carry out works within her property. Therefore, this investigation will assess the landlord’s response to the issues and whether it acted reasonably to the resident’s reports, and in accordance with its policies. The investigation has focused on the information available at the time of the complaint, up until the landlord’s final response on 16 September 2022. The Ombudsman has considered whether the landlord acted in line with its responsibilities based on the information available at the time.

The landlord’s handling of the resident’s reports of a leak in her building causing damp and mould in her property

17. The resident’s repair responsibilities as a shared owner, and the landlord’s repair responsibilities as the freeholder, are set out in the resident’s shared ownership lease agreement. The agreement states that it is the resident’s responsibility to keep her flat, including any fixtures and fittings “within and/or exclusively serving” it, clean and in good repair and condition. The landlord has a responsibility to maintain communal structures, fixtures, and fittings in the building, including pipework in communal areas.
18. The landlord’s repairs policy gives target timescales for completing different categories of repairs, ranging from four hours for emergency repairs to 60 days for complex specialist works. This service accepts that leaks, particularly in large blocks of flats, can be complex to diagnose and repair. Where works cannot be completed within the given timescales because of technical complexity, it is appropriate for this service to assess the landlord’s overall response to the issue.
19. The resident stated that the leak was reported to the landlord on multiple occasions between September 2021 and December 2021. In her complaint dated 4 January 2022, the resident said that the landlord was not addressing a serious health and safety issue in the building. This service has not seen any evidence of a significant response from the landlord to reports of the leak between September 2021 and January 2022. The landlord has also not disputed that its initial response to the reports was inadequate. The resident should not have had to make a formal complaint in order for the landlord to appropriately respond to the leak. The resident said the landlord had stated its position that it believed the leak was coming from the neighbouring flat. The resident disagreed that the landlord had sufficiently investigated the leak to form a reliable conclusion. Considering the leak was affecting multiple flats in the building, it would have been reasonable for the landlord to investigate and fully eliminate communal parts in the building as the cause of the leak. It was appropriate for the landlord to offer compensation for the significant delay the resident experienced in getting an appropriate response from it to initial reports of the leak.
20. Following the resident formally complaining to the landlord, it responded by attending the resident’s building to clarify what was causing the leak. The outcome of this visit informed the landlord’s stage one complaint response of 28 January 2022. When the residents in the block stated their dissatisfaction with the landlord’s complaint response, the landlord responded by referring the issue to the building’s insurer to trace the leak. This was a reasonable response from the landlord and demonstrated it took the resident’s dissatisfaction seriously. The landlord is entitled to consider its management of its financial resources and refer repair issues to the insurer of the building to investigate where appropriate. If the landlord paid for repairs itself rathe than using insurance, it may have to increase leaseholder service charges to cover the cost of repairs. The landlord took responsibility for chasing responses from the insurance company and made it clear that the issue required an urgent response. This was appropriate action from the landlord. The insurance company’s report did not include a finding on the cause of the leak.
21. It is outside the Ombudsman’s role to investigate the actions of the insurer for the building because the insurer is a separate company from the landlord and the landlord is not responsible for its actions. Therefore, we cannot comment on the insurer’s handling of a leak any further. The resident may be able to complain to the insurer separately, if she is dissatisfied with the insurer’s response to the leak.
22. Following the inconclusive report from the insurer, the landlord instructed a leak specialist to attend the building and investigate the cause of the leak, which was carried out on 17 May 2022. It was reasonable for the landlord to seek an expert opinion concerning the cause of the leak. However, it is clear from the evidence that there were further avoidable delays during March 2022 and April 2022, in which little decisive action was taken by the landlord to progress its response to the issue. The evidence suggests this was down to staff taking leave. The landlord should have decided on a reasonable course of action and carried out any next steps a lot sooner, especially as a significant amount of damage was being caused to multiple flats by the continuing leak. The resident should not have been impacted by individual staff members taking leave and the landlord should ensure it has reasonable levels of staff cover in place when necessary.
23. There were some unavoidable delays in arranging for investigations to be carried out at the building due to the complexities of arranging access to multiple flats at the same time. This service accepts that in July 2021, the resident had reason to query whether the landlord had taken the necessary steps to contact all affected leaseholders to arrange access to their flats. A copy of the email sent by the contractor to leaseholders on 4 July 2022 to request availability for access has been provided to this service, although this was a forwarded version of the email that did not include information of its original recipients. The landlord had instructed the contractors to arrange access to the flats and there is no evidence of a deliberate attempt by the landlord to frustrate the contractor’s processes. It is clear from the evidence that the landlord and contractors experienced issues with arranging access to the flats in the building on multiple occasions throughout the course of the events that took place. Delays in successfully arranging access to flats are understandable due to conflicting schedules and unavailability of the leaseholders and/or their tenants, but these cannot be considered to be within the landlord’s control. Overall, the evidence suggests the landlord made reasonable efforts to arrange access with the various residents of the building.
24. The resident has stated to this service that the landlord and/or its contractors were unreliable and unpredictable in their visits to the building. She said that the landlord did not attend some arranged appointments at her flat. There were also occasions where operatives requested immediate access to her flat without giving advance notice to her. This service has seen evidence of both occurrences. While it is good practice for the landlord to give the resident reasonable notice of any requirement to access her flat, this service accepts that the landlord faced significant challenges with gaining necessary access to the flats at mutually convenient times for all parties. It was reasonable for the landlord or its contractors to request access to the resident’s home without notice when the need to do so occurred, as long as it did not demand that the resident met this request. The resident would be within her rights to decline these requests as her lease agreement only requires her to provide access with 48 hours’ notice unless it is an emergency.
25. However, the landlord or its contractors missing pre-arranged appointments with the resident was unacceptable and caused inconvenience to the resident. The resident stated that the landlord did not apologise when this happened. The landlord should apologise to the resident for these occasions and take steps to ensure that appointments are not missed without cause or explanation.
26. Another significant factor in the delays the resident experienced was the landlord receiving reports from various contractors that did not conclusively identify the cause of the leak. The landlord, after the initial delays, responded appropriately to receiving inconclusive evidence by sourcing further evidence from an alternative contractor. However, it could not have been expected to continue to consult experts indefinitely and the landlord was within its rights to eventually assess the evidence it did have available and form a reasonable conclusion based on this. The delays were undoubtedly frustrating for the resident. However, delays caused by inconclusive reports from qualified professionals cannot be considered to be within the landlord’s control. This service finds that the landlord had been active in responding to the leak as it had instructed professionals from multiple companies to investigate the cause of it.
27. The resident suspected that the landlord was trying to avoid its responsibilities towards her and towards the building. The evidence demonstrates that by time the landlord issued its stage two complaint response, it had been advised on multiple occasions that the leak was likely to be the responsibility of the neighbouring flat’s leaseholder. It was therefore reasonable for it to ask them to take appropriate action. This was at odds with the resident’s own assessments of the evidence concerning the cause of the leak. However, this service accepts that the landlord was entitled to make its own reasonable assessments of a complex issue using the information from qualified third–party professionals it had at any given time. There is no evidence that the landlord was receiving information suggesting that it was likely to be the landlord’s responsibility and that it was choosing not to act on that information.
28. The landlord was initially reluctant to share the report it had received from its contractor in May 2022 with the resident. This caused the resident to feel suspicious about how the landlord assessed the value of information it received. She suspected that the landlord was attempting to conceal information that would suggest it was the landlord’s responsibility to fix the leak or give less weight to information that did not support the conclusion it wanted, that it was the neighbouring leaseholder’s responsibility to fix the leak. In line with data protection regulations, landlords can refuse to share reports from third parties with residents on the basis that the landlord does not have consent from the third party to do so. The landlord should clearly explain its reasons for not sharing a report and it would be expected to summarise the report for the resident upon request. It is positive that the landlord chose to share the report on this occasion and it is not clear why the report was not shared sooner. The landlord should have either shared the report sooner or been clearer about why it would not share the report.
29. Following the resident’s dissatisfaction with the landlord’s response at stage two of its complaints procedure, the landlord made further promises to trace and repair any leak, regardless of where responsibility lay for it, to recognise the delays the resident had experienced. It also made arrangements for a mould wash to be completed at all affected flats in the building. The landlord was not strictly obliged to do this, but this was a reasonable response from the landlord given the length of time the issue had been ongoing and the health and safety risk to those living with mould in their flat. The landlord demonstrated a commitment to the leak being resolved despite concluding that it was not within its remit. However, it is not clear if the mould wash was completed. If the mould wash did not go ahead for reasons outside of the resident’s control, it would be appropriate for the landlord to arrange for this to be completed as soon as possible. Even where there is no obligation, it is reasonable for the landlord to follow through with promises it makes to residents.
30. The resident has indicated that she was unhappy with the landlord’s communication throughout its handling of her complaint. The landlord acknowledged that its communication with the resident had not been to its usual standards. The file evidence indicates there were occasions where it was necessary for the resident to chase a response from the landlord because it had not responded to an email from her within two or three weeks. This service considers that it is reasonable to expect the landlord to respond to email contact within no more than 10 working days, unless a later timescale has been agreed with the resident. There were occasions where the landlord was not as responsive as it should have been. However, there were also occasions where the landlord was reasonably responsive, with some of its email replies being sent on the same day. The landlord acknowledged its failings in this area and it was appropriate for it to offer the resident compensation as remedy for the times its communication failed to meet reasonable expectations.
31. The landlord offered the resident a total of £550 compensation to recognise the time and trouble she had gone to in pursuit of a resolution to the complaint issues. The maximum award available in that category as set out in the landlord’s compensation policy is £400. The landlord also offered the resident £200 to recognise the delay she experienced in its response to the leak. The landlord’s compensation policy suggests an award of £1 a day for an unresolved issue such as a slow leak. The landlord’s offer recognised a period of 200 days, which was adequate given the landlord had reasonably concluded within that time that the leak was not its responsibility to resolve. These awards therefore demonstrated that the landlord had taken the resident’s complaint about its response to the leak seriously. The landlord’s offer of £100 to cover, or contribute to, any excess the resident may be required to pay on any insurance claim she made was also a reasonable additional offer given its avoidable delay to responding to the reports of a leak. The landlord’s award of £50 to recognise its inadequate communication does not relate to a specific category in its compensation policy, but it was a sufficient remedy for those occasions where the landlord’s response times were outside of a reasonable timeframe.
32. The Ombudsman’s remedies guidance (published online) suggests that awards in the range of £250-£700 may remedy considerable instances of service failure or maladministration by a landlord. Examples of such maladministration include a landlord’s failure over a considerable period of time to act in accordance with policy or a serious failure which has already been recognised and resolved by the landlord. The landlord’s offer of £850 compensation in recognition of its failures in handling the leak exceeds what this service would have awarded in the circumstances, had the landlord not already made an offer. Therefore, the landlord’s offer is reasonable and it does not need to do anything further in relation to this complaint.

The landlord’s handling of the resident’s associated complaint

33. The landlord’s complaints procedure states that the landlord will issue a formal response at stage one of the procedure within 10 working days of a complaint being made. The landlord can delay the response by up to a further 10 working days in exceptional circumstances but it must communicate this to the resident in advance and provide good reasons for this extension. The landlord must respond to complaints that are escalated to stage two of its complaints procedure within 15 working days. This approach is in line with the Ombudsman’s Complaint Handling Code (‘the Code’), which sets out how landlords should handle and respond to complaints from residents.
34. The landlord acknowledged that there had been delays to its handling of the resident’s complaint. There was a minor delay to the landlord issuing its response at stage one of its complaints procedure. The landlord communicated to the resident about this and gave a revised target date for its response, which it met. Although any delay would have caused some level of inconvenience for the resident, overall this was appropriately handled by the landlord.
35. The resident’s complaint was escalated to stage two of the landlord’s complaints procedure on 28 February 2022. The landlord did not issue its stage two complaint response to the resident until 16 September 2022, nearly seven months later. The delay to the landlord issuing its stage two complaint response was a failure to follow its procedure, although this service accepts that this did not impact on the eventual outcome of the resident’s complaint. The landlord continued its efforts to resolve the complaint issues despite the delay in issuing its final response. This service understands that the landlord may wish to resolve complaint issues before issuing its complaint responses, however this is not in line with the approach as set out in the code. The landlord should ensure that it responds to complaints within the timescales set out in its complaint procedure to ensure that the resident’s reasonable expectations are met. The delayed response meant the resident had to wait longer to refer her complaint to the Ombudsman, which would have been inconvenient for her. It was appropriate for the landlord to offer the resident compensation to remedy its complaint handling failing.
36. The landlord offered the resident a total of £200 compensation to recognise the delays in its complaint handling. The landlord’s compensation policy allows for a maximum award of £100 in this category, where there is evidence of the landlord “not adhering to the complaints procedure”. The landlord offered double its maximum award for poor complaint handling, which is indication that it accepted where it had failed and was attempting to put things right. The Ombudsman’s remedies guidance suggests that an award of £200 may remedy instances of service failure that had some impact on the resident but did not affect the overall outcome of the complaint. Therefore, this service considers the landlord’s offer to be reasonable.
37. The resident has stated to this service that she has not accepted the landlord’s offer of compensation. The landlord should contact the resident to re-offer the total amount and, should the resident accept the offer, arrange for the payment to be made directly to her as soon as possible.

Determination

38. In accordance with paragraph 53 of the Housing Ombudsman Scheme, the landlord has made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of the resident’s reports of a leak in her building causing damp and mould in her property.
39. In accordance with paragraph 53 of the Housing Ombudsman Scheme, the landlord has made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the concerns about the landlord’s handling of the resident’s complaint.

Recommendations

40. These determinations are based on the landlord’s offer of £1,050 financial compensation made to the resident as part of its response to her complaint. The landlord should ensure that, should the resident accept the compensation, it pays this sum directly to the resident within four weeks of the date of this determination.
41. The landlord should contact the resident to discuss the findings of the leak specialist’s report of May 2023, if it has not already done so. The landlord should assess the findings of the report, with particular focus on potential defects and features identified as failing to meet building regulations. It should identify where it needs to take appropriate action and ensure it does so without delay, in line with the timescales in its repairs policy.
42. The landlord should ensure that it makes a fair offer of financial compensation to any residents who were affected by the leak in the building, but who did not formally complain to the landlord about it. When calculating any offer, the landlord should assess each resident’s individual circumstances, any time and trouble they went to, and the severity of impact they experienced from the leak and the avoidable delays in resolving it.