Westminster City Council (202125720)

REPORT

COMPLAINT 202125720

Westminster City Council

17 February 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 reports of two leaks from the property above, which caused damage to her property and personal possessions.

Background

2. The resident is a leaseholder of the landlord. The landlord is the freeholder. The property is a flat. The occupant of the flat above the resident is a tenant of the landlord.
3. On 14 November 2021 the resident called the landlord to report a leak into her bedroom from the flat above. It was recorded as an immediate priority repair to be attended within four hours. However, it was over five hours before the contractor attended and then the resident says that he sat in his van on the phone for twenty minutes. The leak was contained that day. At 11.59pm on 26 December 2021 the resident reported another leak into her bathroom and hallway from the flat above. It too was recorded as an immediate priority repair to be attended within four hours. The resident stayed awake all night waiting but nobody arrived. She called the landlord again at 8.45am, by which time the water was coming through the electricity cupboard. She was told the contractor would be there by 10am. However, the resident says the contractor did not arrive to contain the leak until around 3.30pm on 27 December 2021. The landlord says the contractor arrived around 9pm on the 27 December 2021.
4. The resident made a claim for both leaks on the leaseholder building insurance. She raised a complaint on 21 January 2021 as she said the neighbour above had told her that they had been reporting problems with the boiler and the radiator pipes to the landlord for months, and she felt the landlord should have detected that there was a leak sooner. She also said that on both occasions she was told somebody would attend within four hours but that they had failed to do so. She said she had had to make two claims on the building insurance and was unhappy that she would need to pay two lots of excess totalling £200. She believed that the landlord should pay the excess charges and also pay compensation for the damage to her personal possessions and for the stress the leaks had caused.
5. In its stage one complaint response on 2 February 2022, the landlord explained that the first leak had been caused by a leaking radiator pipe in the neighbour’s bedroom and that there had been no reports about this previously. It said the second leak had been caused by a blockage in the waste pipe of the neighbour’s bath. It said although a similar problem had been reported in September 2021, it had been resolved at the time. It apologised that the leaks were not responded to within four hours and that the contractor had not appeared not to act with urgency in response to the first leak (when he sat in his car on the phone for 20 minutes). It said it would consider these to be missed appointments and awarded £20 compensation for each.
6. It also apologised that once the blockage was identified on 27 December 2021, and preventative action had been taken by the contractor, that there was a delay before a drainage contractor came to fully remove the blockage from the neighbour’s waste pipe. It awarded £20 for the delay and £20 for the inconvenience caused by it. It explained that the leaseholder building insurance would cover any decorative damage but that any damage to personal possessions would need be claimed on the resident’s contents insurance.
7. We have not been provided with the resident’s escalation request. However, in its stage two complaint response on 22 February 2022 the landlord said it was sorry that the resident did not have contents insurance and recommended that she arrange some. It said that the £80 total compensation it had awarded at stage one was not for damage to her possessions, and reiterated what each amount was awarded for. It said if she believed it had been negligent in its actions and that she had suffered damage or loss as a result, then she could make a claim on its Public Liability Insurance. It explained that the £100 excess on the buildings insurance excess was an integral part of the buildings insurance policy and was not something that it could pay for a resident.
8. The resident contacted this Service as she believes that the leaks are due to the landlord neglecting the property above her and that it should increase its compensation offer to include the £200 excesses and damage to her personal possessions. She also mentioned that some repairs to rectify the damage caused by the leak were outstanding

Assessment and findings

9. Part of the resident’s complaint concerns their belief that the landlord should compensate her for damage to her personal possessions, as she believes it was negligent in addressing leaks in the property above. This service cannot determine whether the landlord was negligent or liable for damages. This is in line with paragraph 42 (g) of the Scheme which states that the Ombudsman may not investigate 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. It is noted that the landlord has appropriately signposted the resident to its public liability insurance, in order to make a claim, if she believes that it was negligent.
10. The landlord’s leaseholder’s handbook states “The building insurance does not cover the contents of your property such as furniture and other personal possessions. It is therefore your responsibility to take out your own contents insurance policy “. It also explains that there is a £100 excess payable on every claim a leaseholder makes (and £1000 for subsidence claims). As there were two leaks and the resident made two claims, two excesses of £100 were payable. As the excesses are payable by the resident, it was reasonable that the landlord did not agree to pay them.
11. As the leaseholder’s handbook also recommends that residents arrange their own contents insurance for any loss of personal possessions, (as these are not covered by buildings insurance) it was also reasonable that the landlord did not agree to pay compensation for damage to the resident’s personal possessions. The landlord has not provided any evidence that suggests that the neighbour had previously reported issues with the radiator pipework. However, as the resident had said she believed that the landlord’s negligence had led to the leaks and the subsequent damage, it acted appropriately by signposting the resident to its public liability insurance.
12. When the resident first reported the leaks, as they were both classed as immediate priority, the landlord should have attended them within four hours. However, it failed to do so on both occasions. Although both leaks were appropriately contained once the contractors arrived, and preventative action was taken on the second leak until a drainage contractor could attend to fully remove the blockage, the landlord appropriately acknowledged that there had been a delay in fully removing the blockage and apologised for that. The landlord took appropriate steps to compensate the resident for its failure to attend within four hours for both leaks, and for the delay in fully removing the blockage and the associated inconvenience.
13. However, the landlord failed to fully appreciate the impact on the resident that the delay in attending the second leak caused. The resident had reported it at 11.59pm on 26 December 2021 and because the landlord told her a contractor would arrive within four hours, she stayed awake all night awaiting the contractor, and then had to ring again at 8.45am as nobody had arrived. The landlord has explained that the delay was due to the number of calls it had received. This may have been something the landlord could not have predicted or had any control over. However, it should have taken steps to have kept the resident updated, as soon as it became apparent that the contractor would not be able to attend within four hours, and it failed to do so. It also failed to do so when the resident rang at 8.45am. Instead it told her a contractor would arrive by 10am, failed to contact her when it became apparent that this would not be the case. The resident has reported that the contractor eventually arrived around 3.30pm. The landlord has reported that the contractor arrived around 9pm. The repair records do not clarify the time so it is not clear which time is correct. However, both times were far outside the four hour timeframe it should have attended in, therefore it was unreasonable regardless of which time is correct.
14. This would have caused additional stress and inconvenience for the resident. Therefore, the Ombudsman will be ordering the landlord to award a further £70 compensation, in addition to the £80 it has already awarded. This is in line with the Ombudsman’s remedies guidance for cases where there was a failure which adversely affected the resident. Where the landlord has acknowledged failings and/or made some attempt to put things right but failed to address the detriment to the resident and/or the offer was not proportionate to the failings identified by our investigation.
15. The resident has also reported that some of the work to repair the damage caused by the leak has not been completed. As the repair work was being carried out by the insurance company rather than the landlord, the landlord is not responsible for the delays and the resident would need to contact the insurance company regarding that issue.

Determination

16. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s reports of two leaks from the property above, which caused damage to her property and personal possessions.

Orders and recommendations

17. Within four weeks of the date of this decision the landlord is ordered to pay the resident an additional £70 compensation for its service failure in respect of its response to the resident’s reports of two leaks from the property above, which caused damage to her property and personal possessions. This is in addition to the £80 compensation it has already awarded.